19 May HR Law Newsletter – May 2014

UPDATE – NEW FAIR WORK COMMISSION ANTI-BULLYING JURISDICTION

The new Fair Work Commission anti-bullying jurisdiction commenced on 1 January 2014.  Within January alone, 44 applications were received by the Fair Work Commission in this new jurisdiction.

The Commission has advised that by the end of March, 151 applications had been made with only eight being finalised with a decision and of those eight, only one resulted in the Commission actually making orders. Of the 151 applications made, 23 were withdrawn early during case management and another five ahead of a conference or hearing.  There had been two applications where supervisors had claimed they were being bullied by subordinates and one where an employee claimed to have been bullied by the manager and staff of another business.  Aside from those few claims, the bulk of the claims that have been made to the Commission under the new anti-bullying jurisdiction have been made by workers alleging they have been bullied by a supervisor or a manager and most complaints have been born out of some sort of disciplinary action.

While we can’t assess the merit of these applications as we are unaware of the circumstances in each case, it appears that the reasonable management action exemption from the new anti-bullying jurisdiction will be one that employers will often have cause to rely upon.

Significantly, the full bench of the Fair Work Commission has shed light on whether allegations of bullying that occurred before 1 January 2014 would be taken into consideration by the Commission, finding that pre-2014 events can be considered and can influence any decision made by the Fair Work Commission in this new jurisdiction. The intention of this new jurisdiction is not to punish past bullying behaviour but rather to stop future bullying occurring and accordingly, where allegations of bullying pre-date 1 January 2014, the Commission may take these alleged incidences into consideration in determining whether future bullying is likely and accordingly whether orders need to be made to prevent this occurring.

HR Law remains committed to updating you on the developments in this new jurisdiction and will advise when the Fair Work Commission hands down further rulings in respect of this jurisdiction.

CASE – EMPLOYER ORDERED TO PAY $237,770.00 TO ‘BULLIED’ WORKER

While the new Fair Work anti-bullying jurisdiction is aimed to stop future incidents of bullying rather than to compensate the worker for past bullying, that does not mean that a worker cannot claim compensation through another legal avenue, as was highlighted in the recent Queensland case of Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64.    

The Facts

The employee, Ms Keegan, was awarded $237,770.00 in compensation following the Supreme Court of Queensland’s finding that Sussan Corporation (Aust) Pty Ltd (Sussan) was liable for Ms Keegan’s psychiatric injury that was triggered by Ms Keegan being subjected to 11 days of bullying from her store manager, Ms Clarke.

In September 2010, Ms Keegan returned from maternity leave to Sussan’s Cairns central store, and was subjected to criticism from the new store manager, Ms Clarke, about matters including the state of the store prior to Ms Clarke being hired, Ms Keegan’s poor handwriting, failure to remove security tags from clothing and apparent inability to mop the floor properly.  On the fourth day after Ms Keegan’s return from leave, Ms Keegan made a complaint about Ms Clarke to Sussan’s Queensland Business Manager, Ms Makerein (the person responsible for hiring Ms Clarke), claiming that she was being bullied.  According to Ms Keegan, Ms Makerein told her to ‘put some lippy on and go home to [her] bub’.

Ms Makerein did not follow the Sussan bullying and harassment policy after she received Ms Keegan’s complaint, but rather she told Ms Clarke about the allegations and asked her to be ‘more mindful’ of how she dealt with Ms Keegan in the future. Upon Ms Keegan’s return to work, Ms Clarke confronted her about the allegations and unsurprisingly the bullying behaviour intensified. On the 11^th day, Ms Keegan phoned Ms Makerein again to complain about Ms Clarke’s behaviour and was told that she had to ‘work it out for herself’.

As a result, Ms Keegan developed a psychiatric condition and was declared medically unfit to return to work. Ms Keegan’s mental decline was so severe that she was unable to adequately look after herself or her child. Ms Keegan subsequently brought proceedings against Sussan for its negligence, breach of contract and breach of statutory duty.

Despite Sussan claiming that Ms Keegan’s psychiatric condition was extraordinary and unforeseeable given Ms Clarke’s essentially unremarkable behaviour towards Ms Keegan, the Court found that Sussan was ‘put on notice’ of the behaviour by Ms Keegan and as a result it was reasonably foreseeable that Ms Keegan would suffer a psychiatric condition. In addition, the Court found that Ms Makerein had completely failed to apply and follow Sussan’s bullying and harassment policy nor had she taken any alternate reasonable approach to deal with Ms Keegan’s complaints. Sussan was held responsible for Ms Makerein and Ms Clarke’s actions.

Lessons for Employers

Employers have a duty to take reasonable care for their employee’s safety.  This case highlights the importance of employers addressing complaints of bullying or other inappropriate behaviour.  Even where an employee does not want a complaint to be taken further, employers should tread carefully as once a complaint is made they are ‘on notice’ and may be held liable if they fail to take appropriate action.

Notwithstanding that a bullying policy exists, unless employees (including management) are aware of the policy and the policy is actually implemented, the employer will not be able to rely on the provisions of the policy as a defence to liability for its employees’ actions.

Any questions relating to bullying in the workplace or how best to implement a policy, please do not hesitate to contact HR Law.